Use of Search Warrants to Create Trump Enemies List Continues

by Paul Alan Levy

In a motion to quash filed today, three Facebook users are challenging search warrants issued by federal prosecutors seeking to rummage through accounts in which they supported protests against the inauguration of Donald Trump on the weekend of January 20. One of the accounts may be the Facebook analogue of the web site that has been the subject of the heavily-litigated search warrant to DreamHost; two others are the personal accounts of the individuals, Lacy MacAuley and Legba Carrefour, who were identified on the web site as media contacts for that web site. The demand for a search of the DisruptJ20 Facebook page is troublesome for the same reason that the demand for the search of the web site threatens First Amendment values — even if we assume that some member of the grouping that called itself DisruptJ20 organizers was at the same time secretly plotting a riot, that not should be a basis for subjecting everybody who was in touch with the DisruptJ20 Facebook page to investigation by Trump Administration prosecutors.

The demand to search the Facebook accounts of MacAuley and Carrefour is even more troubling. Individual Facebook accounts often contain highly personal matters, and if political opponents of the Trump Administration know that they can too easily have their entire Facebook accounts searched just because it turns out that some coalition of which they were a part included somebody who was secretly planning a riot, the chilling effect on future participation in anti-Trump political activity could be substantial.

Moreover, we cannot assume that the judge who approved the search warrant had good reason to find probable cause. The reasons for suspicion include the fact the Government fought hard just to prevent Facebook from notifying its account holders that their Facebook privacy was threatened (it only relented on the eve of oral argument in the Court of Appeals on the gag order), as well as the fact that the warrant application and supporting affidavit remain secret. We know that Detective Greggory Pemberton submitted a highly deceptive account in support of the subpoena to DreamHost to search of the web site. Was it the same affiant who purported to show probable cause to search these three Facebook accounts? Was his affidavit similarly deceptive? The brief in support of the motion to quash reserves (in its final pages) a possible challenge to the probable cause finding that would have been a necessary basis for the warrant.

The brief, filed by the American Civil Liberties Union for the District of Columbia, explains how the warrants to Facebook offend the First as well as the Fourth Amendment. But the brief is not addressed only to the impact on the privacy interests of the three Facebook account users; it also notes that the prosecutors are seeking to identify many thousands of Facebook users who “liked” either the DisruptJ20 Facebook page or one of the posts on any of the three accounts, or who “friended” or communicated with either of the individual Facebook users.

Still, now-anonymous individuals who want to stay off the new Trump enemies list want need to file their own brief seeking protection for their anonymity. We’d be glad to hear from such Doe Facebook users who would like to defend their own rights.

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